Professional Documents
Culture Documents
September 5, 2007
No. 06-2340
(D.C. No. CIV-06-340 JH/LFG)
(D . N.M .)
Defendants-Appellees.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
(continued...)
(...continued)
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Because M r. Gulas applied for leave to file his case without prepayment of
fees under 28 U.S.C. 1915(a), the district court examined the first amended
complaint under 1915(e)(2)(B), which authorizes sua sponte dismissal of in
form a pauperis proceedings if the court determines that the action is frivolous or
malicious, fails to state a claim on which relief may be granted, or seeks damages
from a defendant who is immune from such relief. The court determined that the
first amended complaint had numerous deficiencies. To the extent M r. Gulas
sought redress for constitutional violations alleged to have occurred in California,
the court ruled that he had chosen the wrong forum, that it lacked jurisdiction
over California actors, and that none of the New M exico defendants had a role in
those alleged violations.
As to the claims related to the alleged incidents in New M exico, the district
court dismissed the complaint without prejudice under Fed. R. Civ. P. 12(b)(6) for
two reasons. First, the court determined that not only had M r. Gulas failed to
allege that he had exhausted his administrative remedies under 42 U.S.C.
1997e(a), a provision of the Prison Litigation Reform Act of 1995 (PLRA), as
required by Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1210 (10th Cir.
2003), which was controlling precedent at the time, but he in fact admitted that he
had not pursued any administrative remedies whatsoever. Second, the court
determined that the first amended complaint suffered from internal
inconsistencies regarding M r. Gulass New M exico state-court extradition
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In each of the two dismissal orders, the district court stated it was
dismissing the complaint without prejudice. W hile a dismissal of a complaint
[without prejudice] is ordinarily a non-final, nonappealable order (since
amendment would generally be available), . . . dismissal of [an] entire action is
ordinarily final. M oya v. Schollenbarger, 465 F.3d 444, 449 (10th Cir. 2006)
(quotation omitted). Our review of the two dismissal orders indicates that the
court intended to dismiss M r. G ulass entire action without prejudice.
Accordingly, the dismissal orders were final and appealable under our practical
approach. Ton Servs, Inc. v. Qwest Corp., ___ F.3d ___, No. 06-4052, 2007 W L
2083744, at *1 n.4 (10th Cir. July 23, 2007) (quotation omitted); cf. Patel v.
Fleming, 415 F.3d 1105, 1107-08 (10th Cir. 2005) (exercising jurisdiction under
1291 over appeal from dismissal without prejudice for failure to exhaust under
PLRA).
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Discussion
On appeal, M r. Gulas broadly argues that under the liberal reading to which
he is entitled as a pro se litigant, his pleadings state a claim upon which relief can
be granted. 4 Although he has not specifically argued that the district court erred
in applying PLRAs exhaustion requirement, our de novo review, see Jernigan v.
Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002), reveals errors in the courts
application of the exhaustion requirement that compel us to remand. W e also
conclude that to the extent PLRA does not apply to his claims, the court should
permit M r. Gulas an opportunity to amend his pleading.
To reiterate briefly, the district court concluded that PLRAs exhaustion
requirement applied to the first amended complaint because many of the claims
concerned jail or prison conditions. The court then applied Steeles holding that
exhaustion is an affirmative pleading requirement and determined that
M r. Gulass express statement that he had not pursued any administrative
remedies showed that he had failed to exhaust. But the district court made no
finding that M r. Gulas was confined in a jail, prison, or other correctional
facility when he filed the action, which is a prerequisite for the application of
PLRAs exhaustion requirement. Norton v. City of M arietta, 432 F.3d 1145,
4
1150 (10th Cir. 2003). Nothing in any of M r. Gulass pleadings indicates that he
was confined when he filed the action; rather, he described himself as a California
citizen and provided what appears to be an ordinary street address. On remand,
the court must determine whether M r. Gulas was confined when he filed this
action. If he was not, then PLRAs exhaustion requirement does not apply. See
id.
If the district court determines on remand that M r. Gulas was confined
when he filed this action, there are two other matters the district court must
consider before dismissing the action sua sponte. In its first dismissal order, the
court correctly observed that PLRAs exhaustion requirement applies only to
prisoner suits that concern conditions of confinement, see 42 U.S.C. 1997e(a);
Porter v. Nussle, 534 U.S. 516, 525 (2002), and that many of the allegations in
M r. Gulass first amended complaint concerned these conditions. However, it
appears that some of his claims do not pertain to conditions of confinement,
namely, those concerning M r. G ulass warrantless arrest and extradition.
Therefore, if the court finds that M r. Gulas was confined when he filed this
action, the court should consider whether any of his claims do not concern
conditions of his confinement and, if any do not, whether he may proceed on
those claims regardless of any failure to exhaust.
The other matter the district court must consider if it determines that
M r. Gulas was confined when he filed this action is subsequent case law on sua
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sponte dismissals for failure to exhaust. Although good law at the time of the
district courts dismissal orders, Steele was later abrogated by the holding in
Jones v. Bock, 127 S. Ct. 910, 921 (2007), that exhaustion is an affirmative
defense, not a pleading requirement. However, we have read Jones as leaving
open the possibility of sua sponte dismissal but have admonished district courts to
exercise caution in taking such an approach. Aquilar-Avellaveda v. Terrell,
478 F.3d 1223, 1225 (10th Cir. 2007).
Sua sponte dismissal may be appropriate w here a plaintiffs failure to
exhaust is clear from the face of the complaint and the court ensures that the
failure to exhaust is not due to the action or inaction of prison officials, that is,
whether the prisoner was thwarted in his attempts to [exhaust]. Id. But only
in rare cases will a district court be able to conclude from the face of a complaint
that a prisoner has not exhausted his administrative remedies and that he is
without a valid excuse. Id. W hen there are affirmative but not conclusive
statements in the complaint regarding exhaustion, a district court cannot
dismiss the complaint without first giving the inmate an opportunity to address
the issue. Id. (quotation omitted). Furthermore, sua sponte dismissal for failure
to exhaust under PLRA requires an understanding of the remedies available and
thus likely would require information from the defendant as well as the inmate.
Id. at 1225-26 (quotation omitted).
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the court recited the liberal pro se standard, but its alternate resolution of the case
is at odds with the general rule that [d]ismissal of a pro se complaint for failure
to state a claim is proper only where it is obvious that the plaintiff cannot prevail
on the facts he has alleged and it would be futile to give him an opportunity to
amend. Perkins v. Kansas Dept of Corr., 165 F.3d 803, 806 (10th Cir. 1999)
(emphasis added). Again, the court stated that it was unable to ascertain if all of
the deficiencies could be remedied by amendment the failure to exhaust could
not, but the other problems might only be due to poor draftsmanship.
Consequently, if the court determines on remand that it cannot dismiss sua sponte
all of the claims for failure to exhaust under PLRA, the court should consider
whether M r. Gulass pleadings state a claim upon which relief can be granted
and, if not, whether to permit further amendment.
Conclusion
The orders of the district court dismissing the first amended complaint and
the second amended complaint are REVERSED and VACATED, and the case is
REM ANDED for further proceedings consistent with this order and judgment.
Stephen H. Anderson
Circuit Judge
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